Federal Law to Regulate the Conditions for Information and Communications Services (IuKDG)

Reporter's Draft, November 8, 1996

Translation and Commentary by Christopher Kuner, Esq.

Morrison & Foerster LLP, Brussels

Translation copyright 1996 Christopher Kuner. Reproduction is permitted, provided that this translator's note, including the above copyright notice, is retained in its entirety.

Commentary: The German government has been working on this law, which is supposed to lay the foundation for electronic and Internet commerce and the use of multimedia services in Germany, since late 1995. Formerly referred to as the "Multimedia Law", the title was changed in late summer (an earlier version of the law dated July 1996 has also been available on the WWW). The law can be divided into four main sections: 1) the article concerning the use of "teleservices"; 2) the article concerning data protection; 3) the digital signature law; and 4) provisions amending various German laws to adapt them to the requirements of the "information highway".

The law is so wide-ranging that a detailed analysis is not possible here, but a number of provisions stand out. The definition of "teleservices" in Article 1 seems rather vague, as do the rules relating to liability of online service providers, which are unlikely to resolve the uncertainty which actions such as the investigation of Compuserve by the local prosecutor in Munich have caused. The data protection provisions have serious implications for all who want to do business online in Germany and deserve careful study. The digital signature law is discussed elsewhere on this site. The amendments of other laws are more important than they might seem at first to the foreign observer; for instance, Art. 6 makes changes which will bring online services within the Law on the Protection of Minors and require the appointment of "youth protection officers", while Art. 7 makes important changes to German copyright law in order to implement the EU Database Directive.

It should be noted that the law will continue to be the subject of negotiations between the government and the opposition, so that changes (particularly in regard to data protection) are likely by the time it is finally enacted into law. The government's plan at present is to present a "final" version of the law to the Federal Cabinet sometime in late December. The law will then be the subject of parliamentary debate and negotiation throughout early 1996, and will hopefully be enacted into law in the summer of 1997.

Article 1

Law on the Use of Teleservices (TDG)

1

Purpose of the Law

The purpose of this law is to create uniform economic conditions for the various uses of electronic information and communication services.

2

Area of Application

(1) The following provisions apply to all electronic information and communication services which are intended for the individual use of combinable data such as characters, pictures, or sounds, and which are based on a telecommunications transmission (teleservices).

(2) Teleservices within para. 1 include:

1. Offers in the area of individual communication (e.g. telebanking and data transfer);

2. Offers for information or communication, insofar as editorial arrangement to influence public opinion is not the primary purpose (data services, e.g. traffic, weather, environmental, and stock information, as well as the dissemination of information concerning goods and services);

3. Offers for the use of the Internet or other networks;

4. Offers for the use of telegames;

5. Offers of goods or services in electronically-accessible data bases with interactive access and the direct possibility of order.

(3) Para. 1 applies irrespective of whether the use of the teleservices is with or without cost, either wholly or partially.

(4) This law does not apply to:

1. Telecommunications services and the commercial provision of telecommunication services under  3 of the Telecommunications Law of July 25, 1996 (Federal Gazette I, p. 1120);

2. Broadcasting within the meaning of  2 of the Rundfunkstaatsvertrag;

3. Media services within the meaning of  2 of the Mediendienstestaatsvertrag, in the version of ....

(5) Legal provisions concerning the press remain unaffected.

3

Definitions

Within the meaning of this law:

1. "Service providers" are natural or legal persons or groups of persons who make either their own or third-party teleservices available for use, or who provide access for such use;

2. "Users" are natural or legal persons or groups of persons who seek to use teleservices.

4

Freedom of Access

Teleservices are free of licensing or notification, within the scope of the laws.

5

Responsibility

(1) Service providers are responsible under the general laws for their own content which they make available for use.

(2) Service providers are only responsible for third-party content which they make available for use if they have knowledge of such content and blocking its use is both technically possible and can be reasonably expected.

(3) Service providers are not responsible for third-party content to which they merely provide access for use. The automatic and temporary storage of third-party content because of a user access constitutes the provision of access.

(4) Any duties to block the use of illegal content according to the general laws remains unaffected, insofar as the service provider gains knowledge of such content while complying with the obligation of telecommunications secrecy under  85 of the Telecommunications Law, and blocking is both technically possible and can be reasonably expected.

6

Provider Identification Marking

Providers must display the following for their commercial offers:

1. Name and address, as well as

2. Name and address of the authorized representative (in the case of groups of persons).

Article 2

Law Concerning Data Protection in Teleservices (TDDSG)

1

Area of Application

(1) The following provisions apply for the protection of personal data with regard to teleservices within the meaning of the TDG.

(2) Insofar as nothing different is provided in this law, the provisions concerning the protection of personal data which are otherwise applicable shall apply, even if such data is not processed or used in data files.

2

Definitions

Within the meaning of this law:

1. "Service providers" are natural or legal persons or groups of persons, who make either their own or third-party teleservices available for use, or who provide access for such use;

2. "Users" are natural or legal persons or groups of persons who seek to use teleservices.

3

Principles for the Processing of Personal Data

(1) Personal data may only be collected, processed, and used by service providers to perform teleservices if this law or another legal provision so allows or the person affected has given his consent.

(2) The service provider may only use data collected to perform teleservices for other purposes if this law or another legal provision so allows or the person affected has given his consent.

(3) The service provider may not make the provision of teleservices dependent on consent of the user that his data may be processed or used for other purposes.

(4) The design and selection of technical facilities for teleservices shall be oriented toward the goal of collecting, processing, and using either no personal data or as little as possible.

(5) The user shall be instructed concerning the method, scope, place, and purposes of collection, processing, and use of his personal data before it is collected. With regard to automatic processes which make possible a later identification of the user and make preparations for the collection, processing, or use of personal data, the user shall be instructed before this process begins. The content of such instruction must be accessible for the user at all times. The user can waive such instruction. Such instruction and any waiver must be recorded. A waiver does not constitute consent within the meaning of  3.

(6) The user shall be informed before he gives his consent that he has the right at any time to prospectively revoke such consent. Para. 5, sentence 3 applies accordingly.

(7) Consent may also be given electronically, if the service provider assures that

1. it can only be given by an unambiguous and conscious act of the user;

2. it cannot be discernibly changed;

3. its author can be determined;

4. such consent is recorded; and

5. the content of the consent can be revoked at any time by the user.

4

Data Protection Duties of the Service Provider

(1) The service provider shall make it possible for the user to use teleservices and to pay for them either anonymously or using a pseudonym, insofar as this is technically possible and can be reasonably expected. The user shall be informed about this possibility.

(2) The service provider shall insure by technical and administrative means that

1. the user can break off its connection with the service provider at any time;

2. any data concerning the process of retrieval, access, or any other use are deleted immediately after termination, insofar as any further storage is not necessary for billing purposes;

3. the user can make use of teleservices without any third party becoming aware of this;

4. personal data concerning the use of various teleservices by a particular user are processed separately; any combination of such data is not permitted.

(3) The user shall be informed about any transfer to another service provider.

(4) User profiles are permissible only if pseudonyms are used. Any user profile used with a pseudonym may not be combined with data concerning the holder of the pseudonym.

5

Contractual Data

(1) A service provider may collect, process, and use personal data of a user to the extent necessary for the existence, substantive content, or amendment of a contractual relationship with him concerning the use of teleservices (contractual data).

(2) Processing and use of contractual data for the purpose of advising, advertisement, market research or structuring technical facilities of the service provider in accordance with need is only permissible if the user has given his express consent.

(3) A service provider shall transfer contractual data in individual cases upon request of the proper authorities, insofar as this is necessary to prosecute crimes or misdemeanors, to protect against dangers for the public safety or public order, or to fulfill the legal duties of the constitutional protection authorities of the federal government and the federal states, the federal security service, the military security service or the criminal customs authorities.

6

Use Data and Billing Data

(1) The service provider may collect, process, and use personal data concerning the use of teleservices, insofar as this is necessary

1. to make it possible for the user to use teleservices (use data), or

2. to bill for the use of teleservices (billing data).

(2) The service provider shall delete

1. Use data as soon as possible, but at the latest directly following the end of each use, insofar as billing data is not involved;

2. Billing data insofar as it is no longer necessary for billing purposes; billing data pertaining to a particular user which is stored for the creation of detailed bills concerning the use of particular services at the user's request in accordance with  4 shall be deleted at the latest 80 days following dispatch of such detailed bill, unless a request for payment is disputed within this period or is not paid despite a demand for payment.

(3) A transfer of use or billing data to another service provider or to a third party is not permitted. The service provider who permits access to the use of teleservices may only transfer the following to other service providers whose teleservices have been used by a particular user:

1. Anonymised use data for the purpose of market research;

2. Billing data, insofar as it is necessary for the purpose of collecting on a claim.

(4) A bill concerning the use of teleservices may not make visible the provider, time, length, type, content, and frequency of those particular teleservices used by a user, unless the user requests a detailed bill.

7

Informational Rights of the User

The user has the right to view for free at any time on the premises of the service provider stored data concerning his person or his pseudonym. Such information shall also be granted to the user electronically upon his request. The informational right is not excluded under  34, para. 4 of the Federal Data Protection Law in the case of temporary storage within the meaning of  33, para. 2, no. 5 of the Federal Data Protection Law.

8

Data Protection Control

Section 38 of the Federal Data Protection Law shall be applicable, with the proviso that any examination may also be made even if grounds for a violation of data protection provisions do not exist.

Article 3

Digital Signature Law

[Translator's Note: the version of the Digital Signature Law contained in the present law is available separately on this site]

Article 4

Amendments of the Criminal Code

The Criminal Code in the version promulgated on March 10, 1987 (Federal Gazette I, p. 945, 1160), last amended by ... (Federal Gazette ...), is amended as follows:

1. Section 11, para 3 of the Criminal Code shall read as follows:

"(3) Audio and video recording mechanisms, data storage mechanisms, recordings, and other representations shall be the equivalent to writings in those provisions which refer to this paragraph."

2. Section 74d is amended as follows:

a) In  3 the words "( 11 para. 3)" are added after the word "writings".

b) In  4 the words "the writing ( 11, para. 3) or" are added after the word "if".

3. In 86 para 1 the words "or makes publicly available in memory" are added after the word "runs".

Article 5

Amendment of the Law on Misdemeanors

The Law on Misdemeanors as promulgated on February 19, 1987 (Federal Gazette I, p. 602), last amended by .... (Federal Gazette ...), is amended as follows:

1. In  116 para. 1,  120 para. 1 no. 2, and  123 para. 2 sentence 1, a comma and the words "data storage mechanisms" are inserted in each case after the words "video storage mechanisms".

(2) Section 119 is amended as follows:

a) In  1 no. 2, the words "or by granting public access to data storage mechanisms" are added after the word "representations".

b) In  3, a comma and the words "data storage mechanisms" are added after the words "video storage mechanisms."

Article 6

Amendment of the Law on the Dissemination of Writings Harmful to Minors

The Law on the Dissemination of Writings Harmful to Minors as promulgated on July 12, 1985 (Federal Gazette I, p. 1502), last amended by ... (Federal Gazette ...), is amended as follows:

1. The name of the law is amended as follows:

"Law on the Dissemination of Writings and Other Media Harmful to Minors"

2. Section 1, para. 3 is amended as follows:

"(3) Audio and video storage mechanisms, data storage mechanisms, pictures and other representations are equivalent to writings".

3. Section 3 is amended as follows:

a) In para. 1, a comma shall replace the period at the end of no. 3, and the following no. 4 is added:

"4. distributed by information or communication services, made available, or otherwise made accessible."

b) The following sentence is added to para. 2:

"Para. 1, no. 4 does not apply if technical measures have been taken so that the offer or the dissemination in Germany can be limited to adult users."

(4) Section 5, para. 3 is amended as follows:

"(3) Paragraph 2 does not apply:

1. if the action takes place in commercial relations with the relevant trade, or

2. if dissemination to children or minors is excluded by technical or other means."

(5) After  7, the following  7a is added:

" 7a Youth Protection Officer

Anyone who in the course of business maintains electronic information and communications services available for use which are disseminated by means of telecommunications shall appoint a youth protection officer, if such services are generally offered to the public and may contain content harmful to minors. Such person is the contact person for users and advises the service provider in questions relating to the protection of minors. The service provider shall consult with him regarding services offered and the structuring of the general conditions of usage. He may suggest to the service provider that certain services be restricted. The service provider may also fulfill his duty under sentence 1 by obligating a voluntary self-control organization to take over the functions under sentences 2 through 4."

(6) The following no. 3a is added following  21, para. 1, no. 3:

"3a. disseminated, made accessible, or otherwise made available in violation of  3, para. 1, no. 4,"

Article 7

Amendment of the Copyright Law

The Copyright Law of September 9, 1965 (Federal Gazette I, p. 1273), last amended by ... (Federal Gazette ...), is amended as follows:

1. The following section is added following  69g:

"Ninth Part

Special Provisions for Data Bases

 69h

Definition of a Database

A database within the meaning of this law is a collection of works, data, or other independent elements, which are systematically or methodically organised and are separately made available by electronic means or in another way.

 69i

Requirement and Subject of Copyright Protection

(1) Databases which represent an individual intellectual product of their author on account of selection or organisation of the material are protected as works.

(2) Such protection shall be limited to the copyrightable form of expression of the database, and shall not apply to its contents. Existing rights of protection to the contents shall remain unaffected.

 69k

Minimum Rights of Lawful Users

Anyone who is authorised to use a database or to copy a database does not require consent of the author for acts which are necessary for access to the contents of the database and for normal usage of it. If such person is authorised to use a portion of a database, then the above applies only to access and use of such portion. Any contrary contractual provisions are invalid.

 69l

Reproduction for Private Use

Section 53, para. 1, sentence 1 shall not apply to reproduction of a copyrightable form of expression of an electronic database."

2. The following  137h is added following  137g:

" 137h

Transition Rules for Implementation of Directive 96/9/EG

The provisions of the Ninth Part of Section One also apply to databases created before January 1, 1998."

Article 8

Amendment of the Law on the Protection of Distance Learning

The Law on the Protection of Distance Learning of August 24, 1976 (Federal Gazette I, p. 2525), last amended by ... (Federal Gazette ...), is amended as follows:

1. The following  3a is added following  3:

" 3a

Electronic Transmission of Declarations of Will

(1) A declaration of will under this law may, in diversion from the written form required in this law, also be transmitted electronically, if such declaration

1. can only be given by an unambiguous and conscious act of the user;

2. cannot be discernibly changed;

3. can have its author determined;

4. is recorded; and

5. its content can be revoked at any time by the user.

(2) There is no requirement that a notarial deed be issued.

2. Section 6, para. 4, sentence 2 is deleted.

3. The following words are deleted in  11, sentence 1:

"or the law of the German Democratic Republic"

(4) Section 27 is deleted.

Article 9

Amendment of the Price Information Law

The following sentence is added to  1 of the Price Information Law of December 3, 1984 (Federal Gazette I, p. 1429):

"Rules concerning information on the price of continuing services may also be made with regard to services performed by information and communications services."

Article 10

Amendment of the Price Information Ordinance

The Price Information Ordinance of March 14, 1985 (Federal Gazette I, p. 580), last amended by ... (Federal Gazette ...), is amended as follows:

1. The following sentences are added to  3, para. 1:

"The screen display is also the place where the service is offered. If a service is rendered by means of screen display and is charged by units, then a special display concerning the price of such continuing usage must be offered at no cost."

2. Section 8, para. 2, no. 2 is changed to read as follows:

"2. of  3, para. 1, sentence 1, 2, or 4, or para. 2, in each case also in connection with  2, para. 5, concerning drawing up, providing, or making available price lists, or concerning the offering of a notice of the price,".

Article 11

Return to Uniform Order of the Ordinance

The portions of the Price Information Ordinance which are based on Article 9 may be amended by a legal ordinance based on authority under  1 of the Price Information Law.

Article 12

Entry into force

This law enters into force on ..., with the exception of Article 7, which enters into force on January 1, 1998.

END